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In May, the Equal Employment Opportunity Commission (“EEOC”) announced that FedEx Ground Package System, Inc. (“FedEx”) will pay $3.3 million dollars and provide programmatic relief to resolve a disability discrimination charge against the company.

Allegations against FedEx

In its Complaint (Equal Employment Opportunity Comm’n v. FedEx Ground Package Sys., Inc., 15-cv-00256 (Western District of Pennsylvania, February 25, 2015) the EEOC alleged that FedEx violated the Americans with Disabilities Act (“ADA”) by discriminating against deaf and hard-of-hearing individuals who applied for and/or worked in the package handler positions with the company.  To be hired for such positions, applicants must be at least eighteen years old and pass a criminal background check.  Applicants attend a mandatory sort-observation tour (where they see an active package handling shift, observe loading and unloading delivery vehicles, the conveyor systems, scanning, sorting, and the routing of packages), and participate in an interview.


Continue Reading EEOC Delivers Hefty Fine for Disability Discrimination

On May 20, 2020, Chicago’s COVID-19 Anti-Retaliation Ordinance (the “Ordinance”) came into effect.  The Ordinance bars employers from terminating or demoting employees who take time off for reasons related to COVID-19, including taking time off to care for a family member with COVID-19.  Noncompliance with the Ordinance can be costly, including private litigation and enforcement action by the city.  Employees can win up to three times the wages lost due to their termination plus actual damages and attorney fees.  In an enforcement action, Chicago could impose fines of $1,000 per day per violation.  The Ordinance provides employers with an affirmative defense if it relied upon a reasonable interpretation of the public health order at issue and, upon learning of the Ordinance violation, cured the violation within 30 days.

Continue Reading Chicago Approves Landmark COVID-19 Anti-Retaliation Ordinance

As Illinois (with the exception of Chicago) reopens today, Illinois employers should be aware of Governor Pritzker’s released Phase 3 Guidelines for Reopening Business and Returning People to Work Safely.  The guidelines are designed to help businesses and employers to implement safety measures and bring some employees back to work.  The guidelines are organized by industry and include toolkits with signage, training checklists, and other resources to ensure business and activities are conducted in accordance with the latest public health recommendations.  The guidelines are further broken down into “minimum guidelines” and “encouraged best practices.”  The following minimum guidelines are uniform across all industries:

  • All employees who can work from home should condition to do so;
  • Employees should wear cloth face coverings over their nose and mouth when within 6 feet over others;
  • Social distance of at least 6 feet should be maintained between non-household individuals unless participating in activities permitted under Phase III guidelines;
  • Employers should provide hand washing capability or sanitizer to employees and customers (if applicable);
  • Frequent hand washing by employees, and an adequate supply of soap/paper towels and/or disinfectant/hand sanitizer should be available.


Continue Reading Illinois Entering Phase 3 Of Return To Work

Illinois and other states are now on the second week of the extraordinary executive orders colloquially referred to as the “shelter in place” or “stay-at-home” orders.  Illinois’ version, COVID-19 Executive Order 8 (the “Order”), was issued by Governor J.B. Pritzker on March 20, 2020, is effective through at least April 7, 2020, but will likely be extended.  The requirements of the Order, and the practical takeaways from it for employers struggling to remain open for business and protect their workforces, are instructive to employers in any jurisdiction. A Kelley Drye Client Advisory addressing compliance with Stay-at-Home Orders is located here.

As in other states, the Order generally requires all individuals living in Illinois to stay at home unless they are leaving their home for Essential Activities, Essential Government Functions, or to Operate Essential Businesses and Operations. As summary of Essential Businesses and Operations is contained below.


Continue Reading Lessons from Illinois’ Shelter in Place Orders

Last week, the Chicago City Council passed the Chicago Fair Workweek Ordinance (“the Ordinance”), which requires employers to give workers early notice of their schedules or face penalties if they change shifts without sufficient notice.  For employers, this may present an administrative challenge, but employers should be prepared to address this national trend.  New York City, Philadelphia, Seattle, San Francisco, Oregon, and the District of Columbia have already enacted laws to protect worker schedules and limit employer discretion in adjusting employee schedules. Mayor Lightfoot is expected to formally sign the bill and it will subsequently be effective July 1, 2020. The highlights follow:

Who’s Covered?

  • The Ordinance requires employers in any “Covered Industry,” which includes building services, healthcare, hotels, manufacturing, retail, or warehouse services with more than 100 employees globally (250 in the case of non-profits) with at least 50 covered employees, to provide certain protection around the scheduling of an employee’s shifts.
  • For restaurants, the law is applicable for businesses with 30 locations globally and at least 250 employees.
  • The Ordinance applies to all employees, within Covered Industries, who make less than $26 per hour or receive an annual salary of under $50,000.


Continue Reading Predictive Scheduling for Chicago Too.

On June 2, 2019, the Illinois General Assembly passed SB75, a legislative response to the #MeToo movement. Governor J. B. Pritzker is expected to sign SB75 soon, as it aligns with his campaign promise to tackle sexual harassment.

SB75 creates three laws and amends a number of others to increase protection for employees in Illinois who are victims of sexual harassment, sexual assault, sexual violence, and domestic and gender-based violence. Employers should be aware of the following highlights:


Continue Reading Illinois Tackles Sexual Harassment

Medical marijuana occupies a gray space within the United States. Marijuana is an illegal drug under federal law and is included on the Drug Enforcement Administrations’ Schedule I, along with heroin and LSD. The drugs on this schedule are considered to have “no currently accepted medical use and a high potential for abuse.” In spite of the federal prohibition, thirty states have passed some form of legislation allowing for the medical use of marijuana.

This conflict between state and federal law may cause employers confusion—especially in states with expansive disability protections. For example, the New Jersey Law Against Discrimination (“NJLAD”) which provides extensive protections for individuals with disabilities. The New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”) supplements the NJLAD by stipulating that employees using marijuana for a medicinal purpose are considered to have a disability and such use is protected. These protections, of course, do not force employers to allow employees to use marijuana at work but do pose a dilemma when it comes to workplace drug testing. Many companies require employees to pass drug tests for federally prohibited narcotics. However, the NJLAD requires employers to provide reasonable accommodations to disabled individuals. Since the NJCUMMA classifies medical marijuana users as disabled, is a drug test a violation of their accommodations?
Continue Reading Altered State: Navigating the Haze Around Medical Marijuana in the Workplace

The recent Equifax breach data and public missteps in handling the breach has companies revisiting their cybersecurity measures and refreshing their breach response plans.  Although not every company has consumer data likely to be targeted by hackers, employment files may be compromised, such as when breaches of U.S. government databases exposed the personally identifiable information

We have been watching with some concern recent developments in a much-publicized gender discrimination action filed in DC federal court by a female partner and practice group head in the Washington, D.C. office of Proskauer Rose LLP. The plaintiff filed her $500 million gender bias suit under a Jane Doe pseudonym on May 12, 2017, alleging that the firm engaged in salary discrimination and retaliation.  Proskauer vehemently denied Jane Doe’s allegations, and maintains that she was compensated fairly in accordance with her contribution to the firm, and its pay structure.

Last week, the legal press reported that the plaintiff was making the explosive allegation that she had been “threatened” with termination by the firm, after making an internal complaint of discrimination. It turns out that the alleged “threats” were made during a failed mediation held at JAMS, just before the suit was filed. Plaintiff “Jane Doe” claimed that a Proskauer attorney stated during mediation that she was “ going to be terminated,” because her “complaint upset a lot of people.”

This alleged “threat” was then made a matter of public record when Jane Doe’s counsel filed an emergency motion in the federal action, asking the court to order the mediator’s notes preserved, to settle a “potential he-said-she-said impasse,” on whether these alleged threats had been made. The same day Jane Doe filed her emergency motion, the court issued a minute order granting it, explaining “pursuant to the court’s inherent authority to oversee discovery and the need to preserve the status quo pending a fuller evaluation of the issues, JAMS must preserve the mediator’s notes from the parties’ March 23, 2017 mediation session and all other documents related to the mediation pending further order of the court. 
Continue Reading Should a Statement Made at Mediation Ever be Used in Court?